Approval of counsel in Sheriff court proceedings

We consider that you are capable of conducting most cases in the sheriff court. It is unlikely, other than in the most exceptional circumstances, that we would allow counsel in a case before the Justice of the Peace court.

We will only approve the employment of counsel where you can demonstrate that their employment is appropriate. When assessing sanction applications we will consider the whole facts and circumstances of the case.

Please ensure that you give us sufficient information in order that we can properly weigh up any factors present.

Factors likely to support the employment of counsel

Is the case novel and / or complex from a legal or evidential perspective?

To determine whether this factor applies you need to tell us whether:

  • the case is complex, and, if so, why?
  • there are novel or complex legal arguments to be made. If so, what are they?
  • there is complex or evolving case law applicable to the case. If so, what is it?
  • the arguments required are novel in the particular case.
  • counsel’s expertise is likely to assist in the presentation of the novel and/or complex issues in a manner which will allow the court to determine the matter(s) more efficiently.

The occurrence of any unforeseen medical or personal emergency you may face where you are a sole practitioner, or where there is no other member of your firm available to conduct the case which would  otherwise prejudice the assisted person’s case if counsel were not made available

We can grant approval to employ counsel where the you advise us that you need to employ counsel in the case due to unforeseen exceptional personal or business circumstances including the sudden illness or death of a key member of staff and one of the following apply:

  • the solicitor is unable to conduct the whole case and they have had a longstanding involvement in the preparation and conduct of the case up to the point of their becoming unavailable
  • the solicitor is unable to do certain elements of the case in the short term and no alternative solicitor is available, including instructing a solicitor on an agency basis. Where prior approval is granted for counsel to conduct a trial in the short term, on the basis that there is no other solicitor available, you should attach a condition to that grant of prior approval stating that if the proceedings are adjourned to another date in the future then the prior approval no longer remains in place (this is on the basis that the grant is being made on the basis of a problem which is temporary)
  • Where you are unable to deal with a case because of a sudden illness or the illness or death of a partner or key member of staff, you should provide:
    • information as to the other arrangements you have attempted to put in place such as transferring the case or employing a solicitor on an agency basis
    • details of the arrangements that will be put in place so that counsel is properly instructed when attending court.

Any relevant considerations of equality of arms

Parity of representation, of itself, may not be sufficient to grant prior approval for counsel in case. The co-accused position(s) may differ greatly in any prosecution with some accused facing far more serious charges than others on a complaint or indictment. There may also be complex legal arguments which do not apply to all accused persons in the same case. We will always check the respective positions of the other accused in the case prior to determining whether it is appropriate to approve counsel on the basis of parity of representation.

Where a co-accused in a case is privately funding counsel that, of itself, is not persuasive in terms of approving counsel and any application submitted in those terms should be refused.

We will refuse an application where approval for counsel has been granted to a co-accused purely on the basis that an emergency situation has arisen in the firm representing that accused, and there are no other factors which demonstrate that the employment of counsel is appropriate.

Using counsel for non-advocacy work

Where approval is sought for non-advocacy work, such as counsel’s opinion, you still need to tell us whether matters of novelty or complexity arise which make the employment of counsel appropriate.

Where approval is asked for at an early stage of a case where no request has been made for counsel to conduct the court case, we will consider the following:

  • is the request for counsel premature? Is it actually needed at this stage, and is there enough information currently available for counsel’s contribution to help progress the case?
  • will the involvement of counsel at this stage save time and/or expense in the long run? For example, is counsel’s advice needed to decide whether an early resolution of the case is appropriate?

We will only grant approval for an opinion or other non-advocacy work where issues of novelty and/or complexity arise and we are satisfied that doing so will help progress the case.

The scope of our prior approval

Where approval has been granted for counsel to conduct the trial the grant includes necessary consultations with the accused and necessary notes (including an opinion or substantive note on the line of evidence that is integral to the accused’s defence.

Sheriff Court

In Sheriff Court proceedings the grant does not cover counsel’s attendance at first diets or intermediate diets. Where we receive an application for counsel to attend any such diets and there is no information in the application which details any complex matters which require to be addressed then we will refuse the application.

Sheriff and Jury

In Sheriff and Jury cases where we have approved the employment of counsel for the conduct of the trial we will normally grant the following applications:

  • where the evidence of witnesses in the case is to be taken on commission
  • any ground rules hearing fixed by the court prior to evidence being taken on commission, including the related written work required
  • where a matter arises which requires to be dealt with by section 74 minute you should grant for the drafting and arguing of the minute
  • drafting and arguing a section 275 application
  • where a section 259 application is to be opposed.

The reason for granting approval for the matters listed above is that they will all have a direct bearing on the trial process and if counsel is conducting the trial then it is appropriate that they deal with those issues.

In cases where the application for prior approval for counsel to conduct the trial is based on any matter which requires to be determined pre-trial (matters listed above) we will consider, in the first instance, whether it is appropriate to part grant the application for counsel to deal with the pre-trial work only, if it is not shown that it is required to conduct the trial

Any consultations with expert witnesses require separate approval and do not form part of the original grant. When assessing applications for prior approval for consultations we will consider the following:

  • has sufficient detail been provided to explain the purpose of the consultation and what specific matters require to be discussed and / or clarified with the expert? If the application lacks information it should be refused or continued for additional information
  • could the work described be carried out by the instructing solicitor in the form of a precognition? If the matter requiring discussion or clarification does not appear complex then the application should be refused
  • does more than one counsel (in cases where we have approved multiple counsel) require to attend? If this does not appear necessary then the application should be part granted (assuming you are satisfied that the consultation is appropriate?
  • is a face to face consultation necessary? If counsel intend to travel any distance then you should continue the application and ask whether the work could be conducted remotely (again, assuming you are satisfied that the consultation is appropriate).

Factors unlikely to support the employment of counsel

Factors that are unlikely to support the employment of counsel include:

  • the likely length of the trial
  • the likely length of sentence in the event of conviction.
  • the need to lead evidence from an expert witness without reference to other factors
  • the need to lead evidence through an interpreter, without reference to other salient points
  • the leading of a special defence
  • reference to the Crown’s reliance on the Moorov or Howden doctrines without reference to other factors.
  • the fact that a your firm does not normally take instructions in criminal cases but that you wish to represent and existing civil or children’s client
  • just because counsel has been approved for a co-accused, it will not necessarily follow that it is appropriate to sanction counsel for all clients in the case
  • parity of representation between the Crown and defence
  • you or number of solicitors from your firm will be on holiday at the time of the trial
  • approval was previously granted for counsel as the case was originally identified as a High Court prosecution and the client has established a rapport with counsel.

Other factors: examining or cross-examining an officer of court

Sympathetic consideration may be given to applications to employ counsel in cases where it is likely that you will require to cross examine another solicitor practicing in the same court, or a Sheriff, procurator fiscal or Sheriff Clerk.

You should address:

  • why you accepted instructions in the case
  • why the case cannot be transferred to another solicitor
  • that the evidence likely to be adduced is not formal in nature.

There may be situations where the evidence of a court official is to be challenged on the basis of their dishonesty or alleged dereliction of duty. In such cases, it may be appropriate to approve counsel without seeking transfer of the case to another solicitor.

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